Daniel v. State , 1982 Wyo. LEXIS 327 ( 1982 )

BROWN, Justice.

A jury found appellant guilty of involuntary manslaughter.¹ The district judge sentenced appellant to a term in the penitentiary of not less than 19 years and not more than 20 years.

The issues urged on appeal are:

“1. Under the facts of this case, did police officers violate the Appellant’s federal and state constitutional rights to counsel, against self-incrimination, and to due process of law by obtaining statements from him after he made several inquiries about his right to counsel and the police ignored those inquiries?

2. Under the facts of this case, did the trial court abuse its discretion by sentencing Appellant to 19-20 years for the offense of involuntary manslaughter, and does such a severe sentence, under the facts of this case violate federal and state bans on cruel and unusual punishment and Art. 1, § 15 of the Wyoming Constitution?”

We will affirm.

Helen Bunning, an instructor at Western Wyoming College, died from a stab wound received at the college during the early afternoon of September 17, 1980. On September 19, 1980, appellant presented himself at the office of the Rock Springs Chief of Police, Russell G. Hawk. Appellant told Chief Hawk’s secretary the purpose of his visit to the police department, and the secretary then told the Chief that there was an individual who said he was an eyewitness to the stabbing at the college. Chief Hawk agreed to talk to the individual, and asked the secretary to have some investigators come into the office. The appellant then went into the Chief’s office with his wife and children and said that he was responsible for the accident at the college. The Chief asked the appellant if he was talking about the lady who was stabbed, and appellant responded by saying that he was totally responsible for the accident.

Before any questioning by police, appellant had already confessed to killing Helen Bunning accidentally, the crime of which he was convicted. The Chief then advised appellant of his Miranda rights and asked for a recorder. There was no further conversation until Officers Ellis and Grymes came into the Chief’s office with the recorder. Conversations, questions and answers thereafter were recorded. The Chief asked appellant some preliminary questions, such as correct name and complete address, then reviewed with appellant and the other officers what appellant had previously told him. Appellant did not disagree with the Chief’s narration, but emphasized that the stabbing was an accident.

Near the beginning of the interview Chief Hawk told appellant that based on what he had initially said, appellant would be taken into custody and charged with homicide. The Chief said that appellant would be arrested whether or not he made a statement. Early in the interview appellant said he would “probably like to have an attorney present.” Appellant never said unequivocally that he wanted an attorney present. There was considerable discussion about appellant’s right to an attorney. Appellant said, “If it’s necessary, that’s because I just don’t want to be taken advantage of or anything like that.” Chief Hawk told appellant that he would not talk to him further unless he was willing to waive his rights. The appellant said: “Well, I’d just as soon get it taken care of. I waive the right to — ” (Chief Hawk interrupted appellant in mid-sentence). At this juncture a waiver form was provided. Chief Hawk prefaced the reading of the waiver saying, “And I’d rather not have the information if it means violating your rights.” Appellant was furnished a copy of the waiver form and Officer Grymes proceeded to read the waiver as follows:

“POLICE OFFICER: Okay, sir. These are your rights guaranteed under the Constitution. Before we ask you any questions, you have to understand your rights, okay?

“MR. DANIEL: Okay.

“POLICE OFFICER: You have the right to remain silent. Understand that?

“MR. DANIEL: Yes, sir.

“CHIEF HAWK: And, it’s 2:22 in the afternoon on September 19, 1980.

“POLICE OFFICER: Okay. Let’s see. I’ll go over that again. You have the right to remain silent. Anything you say can be used against you in Court. Do you understand, that, sir?

“MR. DANIEL: Yes, sir.

“POLICE OFFICER: You have the right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. Do you understand that, sir?

“MR. DANIEL: Yes, sir.

“POLICE OFFICER: If you cannot afford a lawyer, one will be appointed for you before any questioning, if you wish. Do you understand that, sir?

“MR. DANIEL: Yes, sir.

“POLICE OFFICER: If you decide to answer questions now, without a lawyer present, you will still have your right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer. Do you understand that, sir?

“ME. DANIEL: Yes, sir.

“CHIEF HAWK: Now, you have answered ‘Yes, sir,’ to all of these questions. Okay, would you ask—

“POLICE OFFICER: Okay, what I would like to do now is ask for a waiver.

“CHIEF HAWK: In other words, the waiver being that you have read this statement. So, would you read it again now that you have answered all the questions with Mr. Grymes reading it?

“POLICE OFFICER: If you would just read that waiver and if you have any questions about it.

“MR. DANIEL: May I still — if I can’t afford a lawyer — may I still be appointed a lawyer?

“CHIEF HAWK: Well, we wouldn’t talk to you at the point that you want to have an attorney. We would discuss it with you now. You do have the right to have representation now, not only at this time, but later on in the thing. That’s just if you want an attorney, we’re not going to talk to you right now. We are just going to put you in the bucket and shut things down.

“MR. DANIEL: Okay.

“CHIEF HAWK: And, that’s whether you make a statement or not.

“POLICE OFFICER: Okay, that — you don’t, by signing this waiver, you don’t waive your rights.

“MR. DANIEL: I just waive the right.

“POLICE OFFICER: While we are talking now, if you agree to it, okay? But, if at any point, you want to get an attorney; if you want to stop talking — whatever you want — you are the man who makes the decisions, not us. That’s what it comes down to.

“MR. DANIEL: Well, I’d like to talk. I’d like to explain my side of the story right now.

“CHIEF HAWK: Yes.

“POLICE OFFICER: Okay, if you would—

“CHIEF HAWK: I’ve got this one filled out a little bit for you, and while I am filling this one out, would you read me that waiver of rights down here?

“MR. DANIEL: I have read this statement of rights, and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me or coercion (mispronounced)—

“CHIEF HAWK: Coercion.

“MR. DANIEL: —coercion has been used against me.

“CHIEF HAWK: That’s like a threat or something along that line. Okay, with that in mind, would you sign your full name right here?

“Okay, without any interruptions or anything else from us, would you go back and start with about the time and date that this incident started, and go right on through, and we will not even ask you any questions until you get finished. Then, we will ask you what questions we’ve got concerning it.”

There is no question that appellant’s initial confession that he was totally responsible for the stabbing death of Helen Bun-ning was admissible. Appellant was not in custody. Before his volunteered statement, the only thing Chief Hawk knew was that Alvah Daniel claimed to be an eyewitness to the incident. He did not know that Mr. Daniel had killed Mrs. Bunning, and any suggestion that Chief Hawk tricked the appellant into confessing is not supported by the record. Furthermore, Chief Hawk had no obligation to stop the confession and advise the appellant of his constitutional rights. Out of an abundance of caution, Chief Hawk took it upon himself to terminate the first volunteered confession of the appellant, thereby choosing to protect the appellant from further incrimination. Under any view of the facts here, the initial confession of the appellant was admissible. Lung v. State, Okla., 420 P.2d 158 (1966).

After appellant made his initial confession, the police conducted no express questioning regarding the incident until after appellant had been advised of his rights twice and until after he had read and signed a waiver form. Appellant, however, had been taken into custody, and although he had not been formally placed under arrest, he was told he would be arrested for homicide. He therefore knew that he was not free to leave the police station.

I

The genesis of the large body of law developed in the last fifteen years with regard to custodial interrogation is Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), cert. denied 396 U.S. 868, 90 S.Ct. 140, 24 L.Ed.2d 122 (1969). Miranda set forth proscriptions and limitations mandated by the Fifth and Sixth Amendments to the United States Constitution regarding custodial interrogation. The Supreme Court in Miranda held that the Constitution mandates that, “no person * * * shall be compelled in any criminal case to be a witness against himself,” and that “the accused * * * have the assistance of counsel.” The Supreme Court, however, also said:

“ * * * The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. * * * ” Miranda v. Arizona, supra, 384 U.S. at 478, 86 S.Ct. at 1630, 16 L.Ed.2d at 726.

Special procedural safeguards are not required where the suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation. In the recent case of Rhode Island v. Innis, 446 U.S. 291, 300-301, 100 S.Ct. 1682, 1689-1690, 64 L.Ed.2d 297, 307-308 (1980), the Court mandated:

“ * * * ‘Interrogation,’ as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.

“We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. »ft * * >1

In the present case, the police conducted no express questioning regarding the incident until after the second reading of the Miranda warnings and after appellant had read and signed the waiver form. Furthermore, before the second reading of the Miranda warnings, the police did not say or do anything which they should have known was reasonably likely to elicit an incriminating response. Appellant admitted that no one pressured him to talk at any time. Consistent with the rule in Rhode Island v. Innis, supra, the appellant here was not subjected to “interrogation” until after the Miranda warnings had been given twice and he had signed the waiver.

Because of appellant’s unclear desires regarding an attorney, there was considerable discussion about his right to an attorney and the waiver of that right. After considering the entire conversation in context, including the tapes and the transcript, we believe that appellant initiated conversation and provoked further inquiry regarding waiving his right to an attorney. Chief Hawk said, “But we won’t talk to you about the thing unless you are willing to waive your rights.” Appellant said, “Well, I’d like to get it taken care of you know.” Chief Hawk said, “I’m not going to try or want to take advantage of you.” Appellant interrupted and said, “Well, I’d just as soon get it taken care of. I waive the right to — .”

There is no real question here of appellant changing his mind; he never made up his mind until he said, “I’d like to explain my side of the story right now.” With that statement he indicated he had made up his mind to waive his right to an attorney. In Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed.2d 1461, 1466, 146 A.L.R. 357 (1938), the Court maintained:

***** A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver * * * must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”

Appellant here was 25 years old, and had obtained the equivalent of a high school education. He was a member of the iron workers union and felt himself competent to enter an apprenticeship. He was fully advised of his rights at least twice before police questioning and acknowledged that he understood each of the individual rights. He was coherent and aware of what he was doing. His waiver was voluntarily and knowingly made.

Appellant states in his brief that the resolution of the issue presented here will turn upon the recent “remarkable” case of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). He also speaks of “the bold, new holding of the court.” We would eliminate the adjectives “remarkable” and “bold.” The adjective “recent” is sufficiently descriptive of the Edwards case. The holding in Edwards v. Arizona, supra, that provoked ecstasy in appellant was reference to a distinction between police-initiated and defendant-initiated conversation taking place after an accused has invoked his constitutional right to counsel.

The Court said:

***** AitlKMgh we have held that after initially being advised of his Miranda rights, thé accused may himself validly waive his rights and respond to interrogation, * * * the Court has strongly indicated that additional safeguards are necessary when the accused asks for counsel; and we now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, supra, 451 U.S. at 484-485, 101 S.Ct. at 1884, 68 L.Ed. at 386.

If it is difficult for the police officer to determine whether a suspect indeed intends to invoke his right to have an attorney present, the officer may seek clarification of the suspect’s desires, as long as he does not disguise the clarification as a subterfuge for coercion or intimidation. Giaco-mazzi v. State, Alaska, 633 P.2d 218 (1981). That is what occurred here. We see no trickery or subterfuge, and appellant admits that he was under no pressure by the police. We do not think the police did anything in the case at bar proscribed by Edwards. There are factual distinctions in the two cases. In Edwards the accused was unequivocal; he said, “I want an attorney before I make a deal.” Again, here appellant never did say unequivocally that he wanted a lawyer. This alone was justification for the police to inquire further concerning his desires.

Appellant also seeks solace in Dryden v. State, Wyo., 535 P.2d 483 (1975). Dryden held that after a defendant indicated that he wanted an attorney, “the county authorities could not thereafter enter into other interrogation unless and until the defendant had himself reopened the subject.” Dryden v. State, supra, at 493.² This case here, however, is distinguishable from Dryden in at least three particulars. No further interrogation took place until appellant signed a waiver; appellant never did say without qualification that he wanted an attorney; and appellant initiated and provoked further inquiry at the time he waived his right to an attorney.

Appellant seems to be contending that because the police did not stop questioning him after he mentioned the word “lawyer," that everything he said after that should have been excluded. It must be remembered that appellant was charged with first degree murder, but convicted only of involuntary manslaughter. The initial confession, together with a profusion of other evidence, including the results of a polygraph test,³ was more than sufficient to uphold the jury’s conviction of involuntary manslaughter. The evidence that appellant objects to is mostly exculpatory. Ironically, it is largely the same evidence that appellant relied on at trial in his successful attempt to avoid conviction of murder. This evidence was to his benefit at trial, but now he claims that it should not have been admitted. We disagree.

II

Following the jury’s verdict finding appellant guilty of involuntary manslaughter, the Probation and Parole Department conducted an extensive investigation and submitted a detailed report to the district court. At the sentencing hearing appellant produced two witnesses and addressed the court personally. Counsel for both parties also addressed the court. From the report and the hearing, the trial judge was thoroughly advised concerning the appellant’s background and was aware of any mitigating considerations. The court sentenced appellant to a term of not less than 19 nor more than 20 years in the Wyoming State Penitentiary. Appellant asserts that this sentence was an abuse of discretion because the trial judge did not follow any sentencing standards and did not state his reasons for the sentence.

In recent years we have been asked to review sentences in numerous cases. In Scheikofsky v. State, Wyo., 636 P.2d 1107 (1981), we said, “We have an abiding reluctance to review a trial judge’s determination of sentence. The determination is a burdensome decision which no trial judge could lightly make and which we will not lightly overturn.”

In Jones v. State, Wyo., 602 P.2d 378, 380 (1979), we said:

“The law in Wyoming is that the sentencing judge is given wide discretion in determining the length and conditions of the term of imprisonment to be imposed upon conviction and that such determination, if within the statutory limits, will not be disturbed absent a clear abuse of discretion.”

Wyoming has a system of indeterminate sentencing,⁴ which carries with it an implicit adoption of the philosophy of individual sentencing. This system of indeterminate sentencing necessitates the granting of broad discretion to the trial judge, who must choose from the sentencing alternatives and the range of permissible penalties.

In Sanchez v. State, Wyo., 592 P.2d 1130 (1979), this Court vacated the sentence and remanded the matter for further sentencing proceedings. That decision was based on the trial judge’s failure to consider probation before sentencing. In that decision, this Court directed that the American Bar Association Standards for Criminal Justice, Probation, and other sources “be given proper consideration where probation is considered as an alternative to incarceration.” ⁵ Here appellant made a strong plea for probation and his petition was denied.

We have also said that in the imposition of a criminal sentence, the judge in exercising his judicial discretion should give consideration to all circumstances, aggravating as well as mitigating. Cavanagh v. State, Wyo., 505 P.2d 311, 312 (1973). The trial court here weighed and considered all the circumstances very carefully.

In other jurisdictions a number of cases have been remanded for further sentencing proceedings under circumstances not found here. For example:

“ * * * where a sentence was imposed upon the basis of (1) misinformation of constitutional magnitude, such as an inaccurate criminal record, Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), (2) a record comprising prior unconstitutional convictions, e.g., United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), (3) the effect of a simultaneous sentence and conviction upon a more serious count of the indictment, which was later invalidated, McGee v. United States, 462 F.2d 243 (2d Cir. 1972), or (4) failure of the court to receive and consider mitigating circumstances, United States v. Malcolm, 432 F.2d 809, 818 (2d Cir. 1970).” United States v. Brown, 479 F.2d 1170, 1173 (2d Cir. 1973).

The appellant also complains that the trial judge did not give his reasons for imposing a sentence of not less than 19 years nor more than 20 years. We cannot improve on what Justice Roberts said in Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140, 147 (1977), regarding why trial judges should explain their reasons for the sentence imposed.

“The benefits of requiring the trial court to state its reasons for the imposition of its sentence are manifold: First, requiring the trial court to articulate its reasons for selecting a sentence will promote more thoughtful consideration of relevant factors and will help rationalize the sentencing process. It will safeguard against arbitrary decisions and prevent consideration of improper and irrelevant factors. It will minimize the risk of reliance upon inaccurate information contained in the presentence report. A statement of reasons may aid correction authorities if the sentence results in a commitment, and may have therapeutic value if the sentencing judge explains his or her reasons to the defendant. Requiring a trial court to provide a reasoned basis for the sentence imposed may enhance the court’s legitimacy as perceived by judges themselves and participants in the criminal justice system. It will aid courts in attaining their institutional objective of dispensing equal and impartial justice and will demonstrate to society that these goals are being met. Reasoned sentencing decisions may encourage the development of sentencing criteria and reduce disparity in sentences — decreasing the number of unusually lenient as well as unusually harsh sentences. Finally, a statement of reasons will be invaluable in aiding appellate courts to ascertain whether the sentence imposed was based upon accurate, sufficient and proper information.”

See also, People v. Watkins, Colo., 613 P.2d 633, 637, n. 14 (1980).

We strongly recommend that the trial judges explain their reasons for denying probation and indicate the factors they considered in imposing sentence.

Appellant asserts that his sentence is greatly out of proportion to the average sentence for involuntary manslaughter in Wyoming. We are not committed to absolute uniformity in sentencing.

“ * * * We note counsel’s insistence that defendant was treated differently from other persons charged with the same offense. In the first place, the record does not bear this out. Even so, neither the Fourteenth Amendment of the United States Constitution nor Art. 1, § 2, Wyo. Const., requires exact equality. Only arbitrary and invidious discrimination are condemned, neither of which are present in this case.” State v. Cavanagh, supra, at 312.

The circumstances of each crime are different. The background of each convicted person is different and his rehabilitative needs are different. Also, the potential of each convict to be a productive member of society is different. Were we to require uniformity in sentencing and be guided by statistics, we would, in effect, mandate sentencing by computer. We will not substitute our own judgment for that of the sentencing judge unless the latter has clearly abused his discretion.

In the case here the trial judge had the benefit of a comprehensive presentence report and the testimony of witnesses at the sentencing hearing. He knew much more about the background of appellant than a judge would ordinarily know. It would not add anything to this opinion to detail the positive and negative aspects of appellant’s background; suffice it to say the negative outweighed the positive. Appellant emphasized at sentencing that he was family oriented. We do not find it unusual for a defendant who is about to be sentenced to be concerned about his family. To paraphrase a proverb:⁶ A man is rarely seen with his wife except when he is about to be sentenced. The trial judge apparently felt that the appellant would profit by a structured rehabilitation environment. We do not disagree.

We see no abuse here. The sentence was within the limits provided for by law. The sentencing judge agonized over this sentence after giving careful consideration to mitigating matters. This sentence was not imposed without careful thought and the marshaling of a great volume of facts.

Affirmed.

1 . Appellant was charged in the information with three alternate counts of murder in the first degree in violation of § 6-4-101(a), W.S. 1977:

“Whoever purposely and with premeditated malice, or in the perpetration of, or attempt to perpetrate any rape, sexual assault, arson, robbery or burglary, or by administering poison or causing the same to be done, kills any human being, or whoever purposely and with premeditated malice kills any peace officer, corrections employee or fireman acting in the line of duty, is guilty of murder in the first degree.”

Appellant was also charged with kidnapping in violation of § 6-4-201, W.S.1977.

2 . We said earlier in this opinion that we did not necessarily agree with appellant that Edwards v. Arizona, supra, was a “remarkable case,” nor did it articulate a “bold new holding.” This court in Dryden v. State, supra, six years before Edwards, anticipated the Edwards holding. In Edwards, supra, the Supreme Court did not quote Dryden. Perhaps they should have.

3 . In advance of trial appellant stipulated that the results of a polygraph test be admitted in evidence. Appellant personally signed the stipulation.

4 . Section 7-13-201, W.S.1977:

“When a convict is sentenced to the state penitentiary, otherwise than for life, for an offense or crime, the court imposing the sentence shall not fix a definite term of imprisonment, but shall establish a maximum and minimum term for which said convict shall be held in said prison. The maximum term shall not be longer than the longest term fixed by law for the punishment of the offense of which he was convicted, and the minimum term shall not be less than the shortest term fixed by law for the punishment of the offense of which he was convicted.”

5 . “ * * * We do not suggest that these are the only sources district courts should look to for guidance or that they should consider themselves bound thereby. We direct only that they be given proper consideration where probation is considered as an alternative to incarceration.” Sanchez v. State, Wyo., 592 P.2d 1130, 1137 (1979).

See American Bar Association Standards for Criminal Justice Sentencing Alternatives and Procedures, §§ 18-1.1 — 18.8.2 (2nd Ed. 1980).

6 . “A man is rarely seen with his wife except when he is about to be indicted or is running for public office.”